The facts and fiction behind the ‘duty to consult’ aboriginals

Long before Prime Minister Stephen Harper’s cabinet approved the Northern Gateway pipeline this week, there were complaints the federal government had not sufficiently heeded the concerns of First Nations.

Much of that work — the government’s constitutionally mandated “duty to consult” — has been left to Enbridge, the company building the pipeline, and to a special board that looked at the environmental impact of the controversial project.

But questions continue to swirl around the concept, which will be shaped for years to come by the court cases Northern Gateway is sure to spawn.

While a section of the Constitution protects aboriginal and treaty rights, it wasn’t until a historic Supreme Court decision in 2004 that governments had a legal duty to consult aboriginals on matters that might affect them.

That changed when British Columbia’s Haida people went to court over logging licences the province granted without their consent in the 1960s in an area of Haida Gwaii, an archipelago also known as the Queen Charlotte Islands.

The Supreme Court eventually ruled that the Crown has a duty to consult First Nations on any matter that might impact their aboriginal or treaty rights — even if those rights have not been fully carved out in law.

“Before, government always had room to gamble on whether it was important to consult or not on a particular case,” said University of Saskatchewan law professor Dwight Newman, who holds the Canada research chair in indigenous rights in constitutional and international law.

“Now they’ve been told that they have to.”

It doesn’t take much to trigger the duty to consult, which arises when the Crown is thinking about doing something that might affect aboriginal interests.

But there needs to be a link between the government’s action and the potential for a negative impact on an aboriginal community, said Tom Isaac, a partner with Osler, Hoskin & Harcourt LLP who practices aboriginal law.

Nor is the duty to consult a veto, said Isaac: the Crown has a duty to consult aboriginals, but it does not have to meet any or all of their demands before a project goes ahead.

“Even if the judge thinks the government didn’t do a great job in accommodating, they are not to interfere … unless there’s been an overriding and palpable error,” he said.

“What’s that mean practically? It’s a big deal to overturn what the government wants to do, as long as they behave in good faith, with honour and reasonably.”

While the duty to consult rests solely with the Crown, some of that responsibility can be delegated to third parties, such as companies. How much, however, is not clear.

Often, as with Enbridge, companies gather information and hold meetings with aboriginals.

“There are real issues, because the government’s approach in many cases has been largely to say, ‘We’ll let companies do all of the up-front work … and then we’ll have a look at it and decide if we need to do anything more,”’ said Robert Janes, a Victoria lawyer who focuses on aboriginal issues.

That has created tension between First Nations and Ottawa.

“I actually do think it’s unconscionable that the government thinks that they can, in some way, shape or form, pass on their legal obligations to sit down, engage with, consult First Nations,” said Jody Wilson-Raybould, the Assembly of First Nations’ regional chief for B.C.

The federal Conservative government obviously feels differently. A cabinet order posted Thursday says the Crown fulfilled its duty to consult by relying on the work of the joint review panel, which is a board set up to assess the pipeline’s environmental impact, along with “additional consultations.”

Some First Nations believe the government also has a duty to get their “free, prior and informed consent,” a phrase that comes from the United Nations Declaration on the Rights of Indigenous Peoples.

Canada was one of four countries that initially opposed the declaration, which is not legally binding, before the UN adopted it in 2007. Canada eventually endorsed it.

Many aboriginals see the declaration as a standard government must meet.

“In First Nations communities, this has actually become, in one sense, almost a new standard,” said Ken Coates, an expert on aboriginal issues at the University of Saskatchewan.

“That’s not the government’s view. It is not the corporations’ view. It is not the law’s view. But it is there in the process. I think it’s important to understand that we’re getting to a situation where people are starting to talk across each other.”

The law around the duty to consent has continued to evolve since the 2004 Supreme Court decision. Subsequent rulings have clarified that individuals are not owed the same right to be consulted as communities.

The court cases that arise from Northern Gateway could end up answering the lingering questions around the duty to consult.

“This is such a major scale and there’s so much at stake that you’re almost certainly going to get not just litigation, but precedent-setting determinations coming out,” Coates said.

2 comments on “The facts and fiction behind the ‘duty to consult’ aboriginals”

Out of the all the research the author appears to have done, he failed to mention the unceded indigenous territories. How do you decide to build high-risk infrastructure (or any infrastructure, for that matter) on land that neither belongs to the Crown nor the government? And regardless, even if a chief signed a treaty (and we know this process was far from fair or transparent), the fact remains that First Nations are sovereign nations. No legal fabrication of the state such as the Indian Act is going to change that. No means no. Get used to it.

Recent SCoC decisions have confirmed First Nations’ Constitutional right to treaties. The racist, nineteenth-century policies of Joseph Trutch sought to “extinguish” this right upon the 1871 confederation of BC with Canada, ignoring the Proclamation of 1763 contained in the British North America Act, 1867 ( and retained in the Constitution Act, 1982). These recent decisions mean un-ceded FN traditional territory is effectively shared sovereignty between the Crown and the various BC FNs (west of the Rockies); the Crown can only attain complete sovereignty by settling treaties with BC FNs. A significant number of Canadians misunderstand, or seek to mislead, that SCoC decisions are final—rights to treaties is a fact, it cannot be appealed or repealed.

The court recognizes the fundamental unfairness of one party to a negotiation depleting the very subject of negotiation—the land and resources—at the expense of the other party before a settlement is reached; it also recognizes vital national interest, therefore, when a vital national interest is proved, some agreement has to be reached to compensate any particular BC FN for depletions and/or degradation of those lands and resources interim to a treaty. This is “meaningful consultation”, not the dismissiveness of Stephen Harper who would like to interpret the definition as a symbolic notice of what developers intend to do. He has stated at least once that his government has fulfilled its obligation to consult, but this, of course, has no meaning.

The treaty area has to be agreed upon before meaningful consultation can negotiate a deal on resources depleted or degraded interim to a treaty; Land claims typically overlap to a small degree but that could potentially complicate negotiations where development is proposed on or near disputed boundaries. Comprehensive treaties are much more complex than interim agreements and include issues other than land resources. BC has a poor record in settling treaties, having used treachery, trickery, disenfranchisement, isolation and more to avoid atoning for Trutch’s original sin. But the chickens have finally come home to roost, with BC FNs now able to hold up not just Northern Gateway, but other projects as well, until treaties are settled or compensation deals for resource extraction interim can be negotiated.

Undertones of racism are heard when pipeline proponents claim, “the Indians have no veto” because it lumps many distinctive nations under one worn-out misnomer, attempting to identify them as a single race. The issue of racism is only relevant to comprehensive treaty-making, that is, where compensation for targeted, race-based abuse is negotiated. Meaningful consultation, on the other hand, is nation-to-nation negotiation, each First Nation separately. Considering the complexity and multiplicity of claims, meaningful consultation might take a long time—but that’s up to the court.